R v Ames HC ROT CRI 2008-263-000019

[2009] NZHC 2403

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CRI-2008-263-000019

THE QUEEN

v

KALEM JOHN AMES

Charge:          Murder

Plea:               Not Guilty

Verdict:         Guilty of Manslaughter

Appearances:  S Walsh for Crown

P Tomlinson for Prisoner

Sentenced:     30 October 2009

Five years’ imprisonment

SENTENCING NOTES OF VENNING J

Solicitors:            Crown Solicitor, Rotorua

P Tomlinson, Auckland

R V AMES HC ROT CRI-2008-263-000019  30 October 2009

[1]      Kalem John Ames, at the age of 15, you are for sentence for the manslaughter

of Shayne Walker.  The jury found you guilty of that manslaughter following trial in this Court.  Manslaughter carries a maximum penalty of life imprisonment.

[2]      You are for sentence on that charge because in the early hours of 26 January

2008 at Tokoroa you stabbed Mr Walker and killed him. The previous evening the deceased had been at your place. In January 2008 you were living in the garage at your father’s home. You, your girlfriend at the time, your friend Zane and another girl  and  the  deceased  were  all  drinking. Your  father  had  bought  you  a  box  of  18 ready  to  drink  codys  or  bourbon  mixes. Your  friend  Zane  and  his  girlfriend  had bought a further box of 18 codys and a bottle of bourbon to top it up.  At the age of 14 you were effectively unsupervised in the garage with your friends and had access to a substantial amount of alcohol. The girls said they drank about four or five cans each at most. They probably drank  somewhere  between  eight  and  10  cans themselves and you and the other boys drank the rest, in excess of two dozen cans and on some occasions you topped up the cans with bourbon from the bottle.   You and Zane also smoked cannabis that night.

[3]      For some reason you were not keen on the deceased being there.  But during the  course  of  the  evening  you  and  he  spoke  about  that.   The  witnesses  who  gave evidence said that matters had been resolved between the two of you.  But you were still annoyed at the attention the accused gave your girlfriend during the evening.  It was apparently harmless.  She was upset and he comforted her.  He did no more than that.  You apparently had some fake blood that you played with sometimes and after Zane and his girlfriend had left and gone home, you went and got a knife from the kitchen  in  the  house  and  put  some  of  the  fake  blood  on  it. You  returned  to  the garage to your girlfriend, who was the only left in the garage at the time, and said words  to  the  effect  of  “Shayne’s  not  a  problem”  and  held  the  knife  to  your  neck. You then had some sort of fit and fainted for a time.

[4]      Your girlfriend was worried and sent a text to the deceased because she was concerned about him. She received a text back from him. Shortly after that you left the garage with the  knife,  went  and  found  the deceased and stabbed  him. The pathologist’s evidence was that the knife penetrated about 11 centimetres through the

deceased’s  sweatshirt,  skin  and  muscle  before  penetrating  his  lung. The  force required would have been a moderate or firm push.

[5]      The pathologist said you would have been behind and possibly to the right of the deceased.  There is a suggestion that at the time the deceased was on his knees or bending down, either having just been sick or about to be sick.  On any view of it, it was a cowardly blow that killed him.   Having stabbed him you then left him dying and returned to the garage.  You attempted to clean the knife and put it down beside the bed behind the drawers.  You then went to sleep.

[6]      The  jury  verdict,  which  was  a  majority  verdict,  reflects  the  view  of  the majority that they accepted you lacked murderous intent.   For that reason you were found not guilty of murder.   In my judgment the jury came to that view because at the  age  of  14  they  considered  you  were  so  affected  by  alcohol  you  did  not understand the consequences of your actions and the risk to the deceased of stabbing him in the way you did.

Personal circumstances

[7]      Mr  Ames  you  are  the  second  youngest  of  six  children. Your  parents  are separated but remain close to you.  You say you recall feeling loved and supported as a child.  You and other members of your family have been affected by the loss of an older brother of yours, who died at the age of 17 in a tragic accident.

[8]      You have had behavioural issues at school which saw you stood down and suspended. Eventually you were sent to an alternative education programme. You have  also had  anger  problems in the past. Even  though  you  are  a  young man Mr Ames, you are physically a big youth. Your mother said you were diagnosed with oppositional defiance disorder at an early age. You say you were  introduced  to alcohol and drugs at around your late intermediate school year and you started to go to older mates’ houses to drink from then on. Your use of alcohol and to a lesser extent cannabis escalated until this offending. In your own words at the time of the offending you were living “free as” with no constraints. The way you were allowed

to  live  and  your  ready  access  to  alcohol  was  a  major  contributing  factor  to  this offending and tragic death of the deceased.

[9]      Your offending has had a terrible impact on the deceased’s family.   As you have  heard  this  morning  and  you  have  seen  from  their  reactions  you  will  now appreciate  I  hope  the  effect  that  your  offending  has  had  on  them. They  are devastated by the loss of the deceased.  As the deceased’s father said, “words cannot express the family’s sadness and emptiness and strain that has been put on them as a result of such a senseless act.  His mother’s every day is full of tears and want”.  You lost a brother so you may have some appreciation of what they are going through.

[10]     You  have  expressed  remorse  when  speaking  to  the  probation  officer  about your  offending.   You  have  also  written  to  the  family of  the  deceased  as  has  your father.   I have  read  those letters.   You say you  feel  guilty for creating pain in the deceased’s family and killing him when he had his whole life ahead of him.  I accept that your letter shows some insight by you into what you have done.  As you say the deceased  did  not  deserve  to  die  and  his  death  leaves  you  with  a  burden  that  will remain with you for the rest of your life.

[11]     The insight you have shown has no doubt been assisted by the direction you have  received  since  you  have  been  in  custody. In  that  time  you  have  completed various   programmes,   including   an   alcohol   and   drug   programme. You   have responded positively to those programmes.

[12]     From  the  reports  I  have  seen  and  from  your  letter,  you  are  apparently  an intelligent young man.  You can still achieve qualifications and lead a positive life in the future.

[13]     In terms of the sentence the Crown submits that a start point for sentence in the   region   of   seven   and   a   half   years   to   nine   years   would   be   appropriate acknowledging that a discount for that must be given for your age and the fact you were  found  guilty  of  manslaughter  not  murder  and  had,  from  an  early  stage, indicated a willingness to plead guilty to manslaughter.

[14]     Mr Tomlinson has submitted a start point in the range of six to seven years would be appropriate and something towards an end sentence of four years’ or less is also appropriate.

Purposes and principles of sentencing

[15]     In sentencing you I am required to have regard to the purposes and principles

of the Sentencing Act.  In your case the particularly relevant purposes are:

a)        to  hold  you  accountable  for  the  harm  done  to  the  deceased  and  his family by your offending;

b)        to promote in you a sense of responsibility for and acknowledgement

of that harm;

c)        to provide for the interests of the deceased and particularly his family;

d)to   denounce   your   conduct   and   to   deter   you   and   others   from committing similar offending.

[16]     The particularly relevant principles are:

a)        the  gravity  of  the  offending  reflected  by  the  maximum  term  of  life imprisonment;

b)        your culpability, which must take into account your age;

c)        the effect of the offending on the family of the victim;

d)       consistency with sentencing for similar offending;  and

e)        I am also directed to impose the least restrictive outcome appropriate

in all of the circumstances of the case.

[17]     In relation to consistency of sentencing I must consider cases that deal with similar sentences for similar offending.  In particular in this case I have been assisted

by consideration of the cases referred to by counsel of:  R v Waho HC PMN T1/89 3

November 1989 Eichelbaum CJ;   R v Nia Nia HC GIS T021803 18 October 2002

Salmon J;  R v Raivaru HC ROT CRI-2004-077-001667 5 August 2005 Heath J;  R v Herewini   HC   ROT   CRI-2006-063-003151   5   October   2007   Stevens   J; R   v Edwardson  HC  ROT  CRI-2006-069-001101  27  April  2007  Stevens  J; and  R  v Emery HC AK CRI-2008-092-001285 13 February 2009.

[18]     To explain to you, the deceased’s family and the community the sentence that

I must impose I refer briefly to some of those cases.

[19]     Waho was a manslaughter following a stabbing.   The Court imposed an end sentence of five years’ imprisonment.

[20]     In Nia Nia the prisoner was found guilty of manslaughter following trial. He was 16 at the time of the offence. The Judge concluded the verdict of manslaughter was likely based on a lack of murderous intent and took into account the mitigating features of age, willingness to plead guilty to manslaughter, remorse and no previous convictions. A final sentence of five years’ imprisonment was imposed

[21]     In Herewini the prisoner had been drinking for a number of hours prior to the incident.   He argued with the deceased, then followed him up the road and stabbed him.   The Judge considered the use of the knife, the planning and the harm caused were aggravating features.  The Judge took a start point of seven years three months and imposed a final sentence of five years three months.

[22]     In  Edwardson  the  prisoner  was  found  guilty  of  manslaughter  having  been charged with murder.   He had been socialising and drinking with friends and ended up at a party at which the deceased was present.   There was a verbal confrontation. The prisoner was 16 years old at the time.  The Judge adopted a start point of seven years’ imprisonment and imposed a final sentence of four years nine months.

Sentencing exercise

[23]     I  start  by  fixing  an  appropriate  sentence  in  relation  to  the  offending  itself before taking account of your personal, aggravating or mitigating factors.

[24]     I make it clear that in my view there was nothing in the deceased’s actions that night that could amount in any way to provocation even of the slightest kind. There was no reason or excuse for you to have acted in the way you did.

[25]     A particularly aggravating feature of your offending was the use of the knife

to kill the deceased.  You chose to use a knife against the deceased, an unarmed and defenceless man.  I regard your offending in some ways as more serious than that of some  of  the  cases  I  have  referred  to.   You  went  and  collected  the  knife  from  the kitchen.   After  initially playing with  it,  and  making a  strange  reference  to  dealing with the deceased, you then took the knife, went out and sought out the deceased and killed him.  You stabbed him from behind and to make it worse you then abandoned him without trying to seek assistance for him after you had fatally wounded him.   I have no doubt that you acted in this way because you were badly affected by alcohol.

[26]     The  Courts  have  said  on  a  number  of  occasions  that  the  Courts  and  the community are concerned at the use of knives in this way.  In Waho the former Chief Justice said 20 years ago in 1989:

In cases coming before the Courts we see an increasing tendency of people, young   persons   in   particular,   to   reach   for   knives   in   the   course   of disagreements.   One wonders whether people fully realise just how deadly such a weapon is.   In a close range encounter it is only slightly less lethal than  a  gun.   The  Court’s  sentences  in  instances  involving  knives  have  to make  it  clear that  the  carrying and  use  of  such  weapons  simply cannot  be tolerated.

[27]     The  same  point  was  more  recently  made  by  Stevens  J  in  the  decision  of Herewini  that  I  referred  to.          The  Judge  emphasised  that  the  deterrent  aspect  of sentencing means that the sentences that the Courts impose are necessary to make it clear that the carrying and use of knives simply cannot be tolerated.

[28]     In the case of Edwardson, the availability of alcohol to young people without supervision was a factor that led to the offending.   That is also the situation in your case Mr Ames.   For whatever reason, your parents did not supervise you, a 14 year old,  properly. Worse,  the  evidence  was  your  father  had  supplied  you  with  a considerable  amount  of  alcohol. The  lack  of  supervision  and  ready  access  to substantial amounts of alcohol is a recipe for this sort of offending and this sort of result.

[29]         In a recent address to those interested in youth offending, the Principal Youth Court  Judge  made  the  point  that  serious  assaults  by  under  17  year  olds  has  risen noticeably over recent times.   The Judge said the number of assaults with weapons, the best measure of knife crime, (although it includes other weapons), rose from 74 assaults in 1995 to 207 in 2008.   He said we are only talking about small kitchen knives taken out by young people on the basis others are taking them so they may need them for defence.   He said most  youth violence was associated with alcohol. He  said  if  only  the  community  realised  how  much  violent  youth  offending  is committed by boys who are absolutely intoxicated, it’s 80 to 90 percent.   He could have been talking about this case Mr Ames.

[30]     Tragically the combination of knives, youth and alcohol are a dangerous and often lethal mix but the message is just not getting through.

[31]     The appropriate start point for the offending, without having regard to your personal factors, is eight years’ imprisonment.

[32]     I  turn  to  consider  your  personal  circumstances. There  are  no  personal aggravating circumstances.

[33]     The personal mitigating factors are your age, your expression of remorse and your acceptance of responsibility for your act by your willingness to plead guilty to manslaughter at an early stage.   The fact you have no previous convictions is not a remarkable feature.  You were only 14 at the time.

[34]     As to those factors I accept, as I have said, that you now appear to have some insight into your offending and the consequences of it on other people.  You have expressed a motivation to reform yourself which if you achieve it will be to your and society’s benefit. I also accept to a degree your young age and lack of maturity is relevant to your overall culpability. For those reasons a deduction for  your age is appropriate. I also accept that the remorse you have expressed is genuine.  The court

is required to take that factor into account but as the Court of Appeal observed in R v Hessell [2009] NZCA 450 it is, to a degree automatically built into a guilty plea or in your case a willingness to plead guilty.

The discount for a guilty plea

[35]     Taking account of your age and remorse a discount of nine months from the start is appropriate.

[36]     You are then also entitled to a further reduction to take account of the fact you were willing to plead guilty to manslaughter and your counsel properly recorded that in writing to the Crown at an early stage. Again the Court of Appeal have made

it clear in the recent decision of R v Hessell that where a person charged with murder has formally indicated a willingness to plead guilty to manslaughter before trial and the trial proceeds with the result of manslaughter the prisoner is entitled to a discount

for the willingness to plead guilty to manslaughter.

[37]     You were initially before the Court on 29 January 2008.  Your counsel wrote

on  8  April  2008  advising  he  had  your  written  instructions  to  plead  guilty  to manslaughter.  The indication was made well in advance of depositions which were due for 1 May.  I accept it was an early indication.

[38]     In R v Hessell the Court of Appeal noted the first reasonable opportunity will

be  at  the  prisoner’s  first  or  second  appearance  because  by  then  initial  disclosure should have been made and the offender should have representation.

[39]     I accept that in a murder case the concept of first reasonable opportunity may need to be rather more flexible  and  the  Court  of  Appeal’s  observations  were  of

course expressed by them to be for guidance. However,  in  this  case,  given  the admissions you had made and the clear Crown case, there could have been no issue or dispute from a very early stage you had actually killed the deceased and were at the very least guilty of manslaughter.  In regard to those factors and the observations of the Court of Appeal a discount in the range of 30 to 33 percent is appropriate.

[40]     Mr  Ames  please  stand. For  the  manslaughter  of  Shayne  Walker  you  are sentenced  to  five  years’  imprisonment. It  will  be  for  the  appropriate  authorities under s 142A of the Criminal Justice Act to determine where you are to serve that sentence.

[41]     Mr Ames you will be still a young man when you are released from prison. You have killed a man and will carry that burden with you for the rest of your life. You have heard the impact your actions have had on the deceased’s family.  Nothing you can say or do will bring the deceased back.   The only way that you can make any  tangible  atonement  for  what  you  have  done  to  the  deceased’s  family  and  to society is to ensure that you take advantage of the opportunities and programmes that will be available to you and that you lead a positive and good life on your release. You say you intend to.  I hope that is true.  You will be judged by your actions rather than your words.  Stand down.

Venning J